TMI Blog2024 (3) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... ss-1 officers, on scrutiny of the technical bids, declared the petitioner as qualified. Pertinently, one more bidder, who has not submitted GST returns, is also declared as qualified, although technical evaluation report takes special note of such non-compliance, disqualification was not ordered on that count. The condition no.11 under the tender was waived by the Tendering Authority. Pertinently, there is a reason for such waiver. As can be seen from the notification issued by the Ministry of Finance, Government of India, (Department of Revenue) Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union Territory or Local Authority or Governmental Authority by way of any activity in relation to any function entrusted to a Panchayat under Article 243G of the Constitution or in relation to any function entrusted to a Municipality under Article 243W of the Constitution has been exempted. It is, therefore, evident that waiver of condition no.11 by the Tendering Authority was based on rational. Such waiver is neither a mistake of fact or accidental omission. This appears to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... water supply through Tankers under various contracts. Respondent No.3 - District Collector, Beed had floated E-Tender notice dated 13.7.2023 inviting bids for supply of water Tankers in District Beed. As per Schedule, the petitioner submitted his bid alongwith requisite documents. In all 8 bidders participated in Tender process. On Technical scrutiny all eight (8) participant were declared qualified. On opening of Financial Bids, the Petitioner was declared as lowest bidder being L-1. His bid was 43% below the estimated price quoted in E-tender notice. The petitioner, being lowest bidder, was expecting the work order. He submitted representation for execution of the agreement, however, to his surprise, he received a communication/notice dated 25.9.2023 by which 3 (two) lowest bidders including the petitioner were invited for negotiations in the office of Respondent No.3. Petitioner objected to such notice being contrary to the terms of Tender as well as the Government Circulars and Rule-book published by the Government. Petitioner has further pointed out that he has successfully supplied requisite number of the tankers in past and possess best experience. However, Respondent no.3 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Considering nature of the contract and non-applicability of GST for the work under tender, such condition was waived. The petitioner and one another bidder were declared qualified in Technical bid giving benefit of waiver. After opening of financial bid, when the petitioner was found the lowest bidder (L-1), wherein he had quoted 43% below the estimated costs, malafidely, he is declared as disqualified with intention to accommodate other bidders. Ms. Talekar, further submits that respondent no.3 had invited other two lower bidders for negotiations after opening of Financial Bid. The petitioner had objected the same. Being enraged by such action on the part of the petitioner and with an object to accommodate other bidders, impugned order of disqualification is passed, which is arbitrary and tainted with malafides. 6. The learned AGP as well as the learned advocate appearing for the intervenor justified the impugned orders. They would submit that, condition no.11 under tender notice (page 28) states as under : - 11. If e- tenderer is a organization in partnership / transportation company/cooperative organization, copy of the registration certificate, bylaws of the organization, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracts and holds requisite vehicles and manpower. We find that course adopted by the respondents, thereby inviting three bidders for negotiations was not in consonance with Tender conditions. Since petitioner s representation was not positively responded, he filed present writ petition challenging the notice/communication dated 25.9.2023. It appears that immediately, a show cause notice dated 30.10.2023 has been served to the petitioner as to why he shall not be disqualified for non-compliance of condition no.11 regarding GST and final order dated 7.11.2023 regarding disqualification of the petitioner came to be passed. 9. It is trite law that Tendering Authority has right to incorporate the conditions of Tender and also seek the compliance from the bidders. Pertinently, in present case condition no.11 mandates that Bidders must furnish GST numbers as well as the details of returns for financial year 2022-2023 certified by the Competent Authority. It is not the case of the Respondents that the petitioner has misrepresented or submitted false documents depicting that he is complaint of the condition no.11. The aforesaid fact was very well before the Tendering Authority since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... houghtful waiver of the condition no.11 by the Tendering Authority, by which the petitioner was declared as qualified, although he was not holding GST registration or clearance certificate, it is difficult to justify the subsequent order disqualifying petitioner relying upon the same condition. We observe that when petitioner surfaced as lowest bidder, respondent no.3 issued a communication calling upon the petitioner and other two bidders for negotiations, instead issuing the work order in favour petitioner being L-1. Further, when the petitioner objected to such an action of respondent no.3 through his representation and later-on by filing present petition, a show cause notice appears to have been issued to him quoting non-compliance of the condition no.11 and, consequently, second impugned order of disqualification of the petitioner has been passed. We find that aforesaid action on the part of the Tendering Authority is arbitrary and malafide with intention to accommodate other bidders who were emerged as L-2 and L-3. 13. Resultantly, we are inclined to allow the Writ Petition and proceed to pass the following order. ORDER i. The Writ Petition is hereby partly allowed. ii. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
